Citation Nr: 0107333
Decision Date: 03/13/01 Archive Date: 03/16/01
DOCKET NO. 00-06 123 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in No. Little
Rock, Arkansas
THE ISSUE
Entitlement to service connection for hypertension.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
M. Lunger, Associate Counsel
INTRODUCTION
The veteran served on active duty from April 1978 to May
1978.
A perfected appeal to the Board of Veteran's Appeals (Board)
of a particular decision entered by a Department of Veterans
Affairs (VA) regional office (RO) consists of a Notice of
Disagreement (NOD) in writing received within one year of the
decision being appealed and, after a Statement of the Case
(SOC) has been furnished, a substantive appeal received
within 60 days of the issuance of the statement of the case
or within the remainder of the one-year period following
notification of the decision being appealed.
This appeal arises from a November 1999 rating decision of
the RO in Little Rock, AK, which denied service connection
for hypertension. The veteran filed a NOD in December 1999
and a statement of the case (SOC) was issued in February
2000. The substantive appeal was received in February 2000.
REMAND
To establish service connection for a claimed disability, the
facts, as shown by the evidence, must demonstrate that a
particular disease or injury resulting in current disability
was incurred during active service. See 38 U.S.C.A. §§ 1110,
1131; 38 C.F.R. § 3.303. When a disease is first diagnosed
after service, service connection may nevertheless be
established by evidence demonstrating that the disease was in
fact incurred during the veteran's service, or by evidence
that a presumption period applied. See 38 C.F.R. §§ 3.303,
3.307, 3.309.
A preexisting injury or disease will be considered to have
been aggravated by active service where there is an increase
in disability during such service, unless there is a specific
finding that the increase in disability is due to the natural
progression of the disease. 38 C.F.R. § 3.306(a).
The service medical records from the veteran's enlistment
physical examination in January 1978 reflect high blood
pressure readings of 176/110, 136/100, and 150/100. The
veteran's blood pressure was rechecked 3 days later, and the
AFEES Medical Officer recorded the new readings of 126/80,
120/80 and 120/80 on the physical examination report by
crossing out the previous readings and entering the new
readings. A notation "Reviewed Ltr's" was also entered in
box 75 - "Recommendations - Further Specialist Examinations
Indicated (Specify)" on the physical examination report.
Despite the initial indications of hypertension, it was
apparently concluded that the veteran did not suffer from
hypertension and he was accepted into service, without notice
of any defect recorded on his physical examination report.
It appears from the service medical records that almost
immediately upon entering the service in April 1978, the
veteran exhibited symptoms of hypertension, suggesting that
the conclusion of the AFEES Medical Officer was incorrect.
In April 1978, the veteran sought treatment at the Fort
Jackson Medical Clinic complaining of pre-service diagnoses
of hyperthyroidism and heart problems. The service medical
records reflect that he stated he had been told by a doctor
not to join the army. He claimed to be on medication, but
did not know what it was. The examiner took the veteran's
blood pressure and recorded a rate of 180/100 and a resting
blood pressure rate of 100/80. Although the veteran's
thyroid test results were within the normal range, the
results from electrocardiogram indicated hypertension.
Approximately one week later, in early May 1978, the veteran
complained of experiencing chest pains since he began basic
training. The veteran denied a prior history of cardiac
disease, and stated that he "never had this before." The
service medical records reflect an impression of
hypertension. His blood pressure readings on that day were
180/100, 180/94 and 142/88. The veteran was instructed to
return for serial blood pressure readings.
The following day, the service medical records reflect the
veteran's blood pressure readings were 146/100 and 142/80.
He was advised to return later that day for another reading.
The p.m. readings were 142/84, 142/98, 142/80, 140/100.
The veteran returned the next day, and his blood pressure
readings were 146/100, 142/84, 140/100, 144/98, 132/94. His
rates while sitting were 100/90 and rates while supine were
170/84. He was instructed to return in the afternoon for a
second reading, and those readings were 126/82, 114/72,
132/78 and 120/76.
The next day, the veteran's blood pressure was 176/90 and
170/90. The service medical records reflect that after
interviewing the veteran, the examiner concluded that the
veteran wanted to be released from the army and referred him
to the Mental Health Clinic. Notes from the Mental Health
Clinic reflect the veteran did not meet the emergency
criteria, "we cannot get him out of the army." The veteran
was sent back to his C.O. with a unit referral form to be
completed if they believed a full evaluation was necessary.
No additional service medical records are associated with the
file. The veteran's DD 214 form shows he was separated from
service in May 1978, but does not indicate the reason for his
discharge. The veteran's service personnel records are not
associated with the file.
In August 1999, the veteran submitted an application for
pension benefits. On this application he stated that he had
been under the care of a physician at the St. Vincent's
Family Clinic for high blood pressure since 1975. This
application was ultimately denied and thereafter, in October
1999, the veteran submitted an informal claim for service
connection for hypertension.
A review of the veteran's medical records from VA Medical
Center (VAMC) Little Rock, AK, reveals the veteran began
treatment for hypertension in August 1985 and was doing well
with blood pressure medication. These medical records
reflect visits related to hypertension in February and May
1986. The veteran also had high cholesterol readings.
Medical records from the Little Rock Family Practice have
been associated with the claims file. These records reflect
the veteran received treatment at this facility between July
1992 and October 1999 for hypertension. These records also
show the veteran had high cholesterol readings.
Although the veteran reported receiving treatment at the St.
Vincent's Family Clinic since 1975, for his hypertension, the
only records from the clinic associated with the claims file
are for visits from July 1999 through October 1999. In
addition to recording visits for the veteran's hypertension
related symptoms, these records also show his high
cholesterol levels.
In November 1999, the veteran was examined for VA purposes in
connection with this claim. The veteran reported a history
of hypertension, beginning in 1978. He claimed to take one
Diovan HCT daily. The veteran stated that he was scheduled
to see his private physician later in the week for a re-
evaluation. The veteran brought one blood pressure reading
with him and was instructed to mail a second reading to the
RO. The examiner recorded the veteran's blood pressure at
the time of examination as 173/103. The veteran reported
consumption of 12 beers per week and one cup of coffee daily.
He also reported a family history of hypertension and
complained of experiencing frontal headaches once or twice
per week. The examiner found the veteran to have "essential
hypertension, poorly-controlled." The veteran was advised
to monitor his pressure closely and see his physician as
scheduled. The findings of the VA examination do not offer
an opinion on the etiology of the veteran's condition.
The Board observes that records regarding the veteran's
applications for job training education benefits are also
associated with the claims file. On these applications, the
veteran reports prior active duty service from April 1971
through May 1973 and from June 1973 through July 1976.
However, no records from these claimed periods of service are
associated with the file.
The Board believes that the records contained in the claims
file raise several questions about the veteran's condition.
As an initial matter, the prior periods of served claimed by
the veteran should be verified. If in fact he did serve from
April 1971 to May 1973 and from June 1973 to July 1976, his
service medical records and personnel records may be useful
in evaluating this claim; thus if these records exist, they
should be obtained and associated with the claims file.
Second, on the veteran's altered entrance physical
examination, there is a notation "Reviewed Ltr's", yet
these letters are not associated with the claims file. The
Board feels that these letters may refer to some type of pre-
service treatment or perhaps, prior in-service medical
records and could be valuable in evaluating the veteran's
claim. An attempt to obtain these letters/documents and
associate them with the claims file should be made. Third,
the veteran states that his treatment for hypertension began
in 1975, yet the earliest records associated with the claims
file are dated 1985. The Board believes an attempt should be
made to obtain the earlier records and associate them with
the claims file because they may be beneficial in evaluating
the veteran's claim. Furthermore, the claims file does not
identify the basis for the veteran's discharge from service
in May 1978. The Board believes this information may be
recorded in the veteran's service personnel records and may
be helpful in evaluating this claim. Therefore, an attempt
should be made to obtain these records and associate them
with the claims file. In view of the foregoing, the Board
believes additional development should be undertaken to
explore any potential link between the veteran's hypertension
and his service, before it renders a final determination.
After the foregoing development has been accomplished, the RO
should forward the veteran's claims file to a cardiologist
for an opinion regarding the etiology of the veteran's
hypertension; including when the condition arose, and if it
arose prior to service whether it increased in severity
during service; whether the in-service incidents were
temporary flare-ups, or representative of a natural
progression of the condition; or whether these incidents were
beyond the natural progression of the condition. Thereafter,
the claims file should be evaluated and a determination
entered as to whether service connection is warranted.
The Board notes there has been a significant change in the
law during the pendency of this appeal. On November 9, 2000,
the President signed into law the Veterans Claims Assistance
Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000).
Among other things, this law eliminates the concept of a
well-grounded claim, redefines the obligations of the
Department of Veterans Affairs (VA) with respect to the duty
to assist, and supersedes the decision of the United States
Court of Appeals for Veterans Claims in Morton v. West, 12
Vet. App. 477 (1999), withdrawn sub nom. Morton v. Gober, No.
96-1517 (U.S. Vet. App. Nov. 6, 2000) (per curiam order),
which had held that VA cannot assist in the development of a
claim that is not well grounded. This change in the law is
applicable to all claims filed on or after the date of
enactment of the Veterans Claims Assistance Act of 2000, or
filed before the date of enactment and not yet final as of
that date. Veterans Claims Assistance Act of 2000, Pub. L.
No. 106-475, § 7, subpart (a), 114 Stat. 2096, 2099-2100
(2000). See also Karnas v. Derwinski, 1 Vet. App. 308
(1991).
Because of the change in the law brought about by the
Veterans Claims Assistance Act of 2000, a remand in this case
is required for compliance with the notice and duty to assist
provisions contained in the new law. See Veterans Claims
Assistance Act of 2000, Pub. L. No. 106-475, §§ 3-4, 114
Stat. 2096, 2096-2099 (2000) (to be codified as amended at 38
U.S.C. §§ 5102, 5103, 5103A, and 5107). In addition, because
the VA regional office (RO) has not yet considered whether
any additional notification or development action is required
under the Veterans Claims Assistance Act of 2000, it would be
potentially prejudicial to the appellant if the Board were to
proceed to issue a decision at this time. See Bernard v.
Brown, 4 Vet. App. 384 (1993); VA O.G.C. Prec. Op. No. 16-92
(July 24, 1992) (published at 57 Fed. Reg. 49,747 (1992)).
Therefore, for these reasons, a remand is required.
Under the circumstances described above, this case is
remanded to the RO for the following:
1. The RO must review the claims file and
ensure that all notification and
development action required by the
Veterans Claims Assistance Act of 2000,
Pub. L. No. 106-475 is completed. In
particular, the RO should ensure that
the new notification requirements and
development procedures contained in
sections 3 and 4 of the Act (to be
codified as amended at 38 U.S.C.
§§ 5102, 5103, 5103A, and 5107) are
fully complied with and satisfied. For
further guidance on the processing of
this case in light of the changes in the
law, the RO should refer to VBA Fast
Letters 00-87 (November 17, 2000), 00-92
(December 13, 2000), and 01-02 (January
9, 2001), as well as any pertinent
formal or informal guidance that is
subsequently provided by VA, including,
among other things, final regulations
and General Counsel precedent opinions.
Any binding and pertinent court
decisions that are subsequently issued
also should be considered.
2. The RO should verify the veteran's
periods of service, particularly service
claimed by the veteran from April 1971
to May 1973, from June 1973 to July
1976. If the veteran did in fact serve
during these alleged periods, his
service medical records and personnel
records should be obtained and
associated with the claims file. The
veteran's service personnel records from
April 1978 to May 1978 should be
obtained in any event.
3. The RO should ask the veteran to
identify those facilities and physicians
who treated him for hypertension between
1975 and 1985. After obtaining the
appropriate authorizations, the RO
should attempt to obtain and associate
with the file copies of the medical
records the veteran identified,
particularly those from Dr. Charles
Rogers, St. Vincent Family Clinic, 4202
South University, Little Rock, AK; and
Dr. Kevin Roberts, Little Rock Family
Practice, Little Rock, AK.
4. The RO should attempt to identify and
obtain any documents, referred to as the
"letters reviewed" by the AFEES
Medical Officer on the veteran's
entrance examination in January 1978,
which were considered in evaluating this
veteran's soundness for service and
associate these records with the claims
file.
5. Thereafter, the RO should forward the
veteran's claims folder to an
appropriate VA physician to obtain an
opinion regarding the etiology of the
veteran's condition. The opinion should
discuss the veteran's current diagnosis
and the approximate onset date of the
condition. If the physician finds the
condition began prior to service, an
opinion should be rendered as to whether
it is as least as likely as not that the
condition was aggravated in service,
beyond what may be a natural progression
of the condition; and evaluate the
incidents experienced by the veteran in
service. All clinical findings and
reasoning, which form the basis of the
opinion requested, should be clearly set
forth. The claims folder and a copy of
this remand must be made available to
the physician in order that he or she
may fully review the veteran's service
and medical history. A notation to the
effect that this record review took
place should be included in the opinion.
When the foregoing development actions are complete, the RO
should enter its determination as to whether service
connection for hypertension is warranted. If the benefit
sought on appeal remains denied, the veteran and his
representative should be provided with a supplemental
statement of the case (SSOC). The SSOC must contain notice
of all relevant actions taken on the claim for benefits, to
include a summary of the evidence and applicable law and
regulations considered pertinent to the issue currently on
appeal. An appropriate period of time should be allowed for
response.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 2000) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
BETTINA S. CALLAWAY
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2000), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (2000).